Excerpt:.....he merely be deemed to be a tenant under the provisions of the act, but he must also cultivate land personally. and in our opinion there are at least two sections of this act which are clearly inconsistent with the provisions of section 111(c) of the transfer of property act. therefore, the legislature had clearly this in mind that the sub-tenancies created during a particular period, and which had not been challenged by the landlord as provided by section 2a and which inferentially the landlord had accepted, should be protected and the subtenants under these sub-tenancies should be continued to cultivate the land which they had been cultivating for some time. a tenant under a contract whether it is a written or an oral contract, even if the contract is difficult to prove, is still a..........tenants. there is also the definition of 'agriculturist' which means a person, who cultivates land personally. therefore, in order that the definition of a tenant should be satisfied, a person should not merely hold land on lease, nor must he merely be deemed to be a tenant under the provisions of the act, but he must also cultivate land personally. mere possession of land would not be sufficient.3. now, under section 14 of the act, one of the grounds on which a tenancy can be terminated is that the tenant has sub-let the land, and under section 27 a sub-tenancy has been made invalid. but at the time when the sub-tenancy in this case was created the sub-tenancy was regulated by the earlier act. act 29 of 1939, and at that time the subtenancy was not declared to be invalid', and.....

Judgment:

Chagla, C.J.

1. A question of some importance arises for the decision of this Full Bench. The facts may be simplified in order to pose the question clearly. A landlord flies an application for ejecting his tenant on the ground that he is in default for payment of rent. The tenant has no answer to the landlord's application. The landlord Joins in that application, which is preferred before a Revenue Authority, two persons who were sub-tenants of the tenant and to whom the land was let out, and the landlord contended that if the tenancy of the tenant could be legally terminated, the sub-tenants had no right to continue to remain on the land. The question that we have to consider is whether the Tenancy Act gives any protection to these two subtenants, a very important and salient feature of this case is that the contract of sub-tenancy between the tenant and the sub-tenants was a legal contract and the sub-tenants were cultivating the land lawfully. It is true that under the ordinary law of the land, under Section 111(c) of the Transfer of Property Act, when the tenancy, was terminated the sub-tenants would have no right to remain on the land, and that the contract between the subtenants and the tenant would automatically come to an end with the termination of the tenancy between the landlord and the tenant. Has the Tenancy Act made any change in this ordinary law and given a protection to the sub-tenants which the Transfer of Property Act does not vouchsafe to him?

2. Now, we are concerned with the Tenancy Act of 1943 and the relevant section that we have to consider is Section 4 which provides that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not and then we have three categories which are excepted. One is a member of the ownsr's family, the second is a servant, and the third is a mortgagee in possession. Prom the language of this section it is clear that the Legislature constituted a class of persons into tenants who in ordinary law and who by the strength if any contract would not be tenants. The expression 'deemed to be a tenant' makes it clear that but for the legal fiction created by Section 4 the person would not be under the law a tenant. The conditions to be satisfied before a person can become, as it were, an artificial tenant under Section 4 would be that he must lawfully cultivate any land belonging to another person. In our opinion, it is not possible to contend that Section 4 was dealing with a class of contractual tenants. If a tenant had his rights under a contract, then it was not necessary specifically to provide by Section 4 that a person should be deemed, to be a tenant and should have his rights as a tenant. The definition of 'tenant' in the Act makes the position even clearer. Section 2(13) defines 'tenant' as meaning an agriculturist who holds land on lease and Includes a person who is deemed to be a tenant under the provisions of this Act. Therefore, the definition of 'tenant' falls into two parts. One is a tenant who is a contractual tenant under a lease, and the other class is a tenant who is deemed to be a tenant under the provisions of this Act, and the second part of the definition would apply to 3. 4 which, as already pointed out, creates a class of artificial tenants. There is also the definition of 'agriculturist' which means a person, who cultivates land personally. Therefore, in order that the definition of a tenant should be satisfied, a person should not merely hold land on lease, nor must he merely be deemed to be a tenant under the provisions of the Act, but he must also cultivate land personally. Mere possession of land would not be sufficient.

3. Now, under Section 14 of the Act, one of the grounds on which a tenancy can be terminated is that the tenant has sub-let the land, and under Section 27 a sub-tenancy has been made Invalid. But at the time when the sub-tenancy in this case was created the sub-tenancy was regulated by the earlier Act. Act 29 of 1939, and at that time the subtenancy was not declared to be invalid', and therefore on the facts of this case it is clear that the two sub-tenants came on the land under a valid sub-tenancy and therefore when they were cultivating the land they were cultivating the land not as trespassers but under a valid contract between them and the tenant. It could therefore be definitely said of these two sub-tenants that within the meaning of Section 4 they were lawfully cultivating the land. If that be the true position, it is difficult to understand how on the termination of the tenancy of the tenant these two sub-tenants could be evicted by the landlord. Undoubtedly, under the provisions of the Transfer of Property Act the contractual tenancy between the tenant and the sub-tenants would come to an end, but on the termination of that contractual tenancy, by reason of the provisions of Section 4, a statutory tenancy would come into existence. Whereas be-fore the termination of the tenancy the sub-tenants were protected by the terms of the contract between them and the tenant, on the termination of that contract they could look to the statute for their protection.

4. It was urged that Section 3 made the provisions of Chapter V of the Transfer of Property Act, 1882, applicable to the tenancies and leases of land to which the Act applied, but the application was subject to this that the provisions should not be inconsistent with any provisions of the Tenancy Act. and in our opinion there are at least two sections of this Act which are clearly inconsistent with the provisions of Section 111(c) of the Transfer of Property Act. Section 4 itself, which as already pointed out makes a person who is not a contractual tenant a tenant for the purpose of this Act, is contrary to the provision of Section 111(c), which provision puts an end to the contractual tenancy between the tenant and the sub-tenant and makes him liable to be evicted by the landlord. Then there is Section 5, which constitutes every tenancy of a definite duration, in the first place of 10 years and then it provides for various cycles of 10 years; and when one looks at the various sections of the Tenancy Act the position is rendered clear that what the Legislature had in mind was to protect the possession of a person who was actually cultivating the land and who was on the land lawfully and not contrary to law or as a trespasser. The one idea that runs through the Tenancy Act is that the actual tiller on the land should not be evicted provided the title of the actual tiller is derived from some legal incident and is not the result of an unlawful act, and if it is once conceded, as it must be conceded, that the title of the sub-tenants was a legal title and that they were actual tillers on the land, then in our opinion it would be defeating the object with which the Tenancy Act was passed to come to the conclusion that they were not protected by the provisions of this statute and they were placed in a different category from the other tenants to which the provisions of the Act applies.

5. This history of this legislation is also significant as bearing out the same idea. The first Tenancy Act of 1939 had no provision with regard to statutory tenants, but that Act was amended by Act 26 of 1946 and Section 2A was incorporated and that section is in terms similar to Section 4 of the present Act. and it is rather important to note that a locus penetentiae was given to the landlord for a period of one year to make an application for a declaration that a particular person on the land was not a tenant. When the Act of 1948 was passed, S 4A incorporated into this Act by Schedule I the provisions of Sections 3, 3A and 4 of the Act of 1939, and Section 3A provided:

'Every tenant shall, from the eighth day of November 1947 be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant.'

Then the Act of 1948, as already pointed out, by Section 27 rendered sub-tenancies invalid. Therefore, the Legislature had clearly this in mind that the sub-tenancies created during a particular period, and which had not been challenged by the landlord as provided by Section 2A and which inferentially the landlord had accepted, should be protected and the subtenants under these sub-tenancies should be continued to cultivate the land which they had been cultivating for some time.

6. Mr. Patel with his usual fairness found it difficult to explain what object the Legislature had in mind in enacting s. 4. His first rather diffident answer was that the intention might have been to provide for tenancies created by an oral contract or a contract which it might be difficult to establish by evidence. That answer is obviously untenable because Section 4 does not deal with contractual tenants. A tenant under a contract whether it is a written or an oral contract, even if the contract is difficult to prove, is still a contractual tenant, and the language of Section 4 clearly negatives the suggestion that the Legislature was thinking of a particular type or class of contractual tenants. The other answer suggested by Mr. Patel was that Section 4 was a surplusage. Now, a Court must be very loath to hold that when a Legislature in an important social measure solemnly enacts a provision to give protection to a particular class of tenants, such a provision is a mere surplusage to which no effect should be given, and when we find that effect can be given to Section 4 and a large class of sub-tenants could be protected, then it is impossible to accept Mr. Panel's argument that we must ignore Section 4 and proceed to construe the Tenancy Act as if that section did not find a place at all in the statute. Mr. Patel has drawn our attention to various sections of the Act and he has suggested that if we put the interpretation upon Section 4 which We are doing, it may lead to certain difficulties and anomalies. Now, even a Full Bench should not try to cross more than one hurdle at a time, and here we are only concerned with the specific question which we have posed as the question which falls for the consideration of this Bench. But, undoubtedly, in construing a section one must look at the scheme of the whole Act and one must ordinarily try to avoid giving a construction to a section which would render the working of the Act as a whole difficult. But after giving our most careful consideration to all that Mr. Patel has said, we do not think that any serious difficulty or anomaly would arise if we construe Section 4 as we propose to do.

7. It may be pointed out that the Legislature has carried out this particular policy of protecting sub-tanancies in another piece of legislation and that is in the Bombay Rents, Hotel and Lodging House Hates Control Act, Act 57 of 1947, Where by Section 14 it is provided :

'Where the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let before the coming into operation of this Act shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued.'

Undoubtedly, the language of 5. 4 of the Tenancy Act is different from the language of Section 14 of the Rent Act. but Section 4 must be read in the contest of the particular legislation which was being put on the statute book, and in our opinion the substantial effect of Section 4 is the same as Section 14 of the Rent Act and the effect is this that on the termination of a contractual tenancy between the tenant and the sub-tenant, if that sub-tenancy was valid in law a statutory tenancy comes into existence and the sub-tenant becomes the statutory tenant of the landlord. The statutory tenancy only comes into existence when the tenancy and the tenant are eliminated. So long as the tenancy and the tenant are there, the sub-tenant is protected by the contract between him and the tenant and under that contract he is protected and he can continue to remain on the land. But when that protection comes to an end by reason of the elimination of the tenancy between the landlord and the tenant, the statute steps in and gives to the sub-tenant the protection which he would not otherwise' have had. In our opinion, this view of the matter should facilitate the working of the Act and remove any difficulties which might arise if any other view was taken.

8. The reason why this matter has been referred to this Full Bench is that there are conflicting decisions of Division Benches. A view was taken by me and Mr. Justice Dixit in Special Civil Application No 2491 of 1955 on 1-2-1956 (Bom) (A) where in the Judgment it was observed that a certain view taken by the Tribunal was erroneous because it overlooked Section 4 of the Tenancy Act which gave to a person lawfully cultivating any land the status of a tenant. He was deemed to toe a tenant and by reason of the definition of 'tenant' contained in Section 2 (13)' the position of the person who was deemed to be a tenant was the same as that of an actual contractual tenant. Further, if the sub-tenancy was not prohibited, then the petitioner was on the land lawfully and admittedly he was cultivating the land, in which case as soon as the Act of 1948 came into force he was deemed to be a tenant and as such acquired all rights of the tenant. The same view was expressed in Special Civil Application No. 2102 of 1956 on 9-1-1956 (Bom) (B).

9. The other view has been expressed by Mr Justice Bavdekar sitting with Mr. Justice Gokhale in Dinkar Bhagwant v. Babaji Mahamulkar, Special Civil Application No. 981 of 1956 on 17-9-1956 (Bom) (C). We have given our most anxious consideration to this contrary view taken by these two learned Judges. Mr. Justice Bavdekar takes the view that only that person can be considered to be lawfully in possession of the land within the meaning of Section 4 who is there by the permission or authority of the owner. With great respect, to take that view of Section 4 is to add words to the section which the Legislature itself has not incorporated in the section, with very great respect, we do not see any warrant for reading into that section the words 'a person lawfully cultivating any land with the consent or authority of the owner.' If the learned Judge meant by this expression the tenant himself who is undoubtedly on the land with the leave and authority of the owner, then he is a contractual tenant and it was not necessary to enact section 4 to deal with his case. If, on the other hand, the learned Judge meant a person other than a tenant who is on the land by leave and license of the landlord, then the learned Judge wanted to restrict the application of Section 4 to only a licensee of the owner. There is no reason why we should give such a narrow meaning to Section 4 when as already pointed out, in our opinion, the Legislature wanted to protect a much larger class of persons who were lawfully cultivating land and who did not hold that land under any contract which would permit them to continue being in possession of that land. The learned Judge also has come to the conclusion that he has, by holding that there is no provision of the Act which is inconsistent with Chapter V of the Transfer of Property Act, 1882, and in this particular case Section 111(c) of the Act, and for that purpose he has only considered Section 14 of the Tenancy Act and ha has taken the view that whereas Section 14 deals with the termination of the tenancy 'by the act of the landlord. Section 111(c) deals with the automatic-termination of the lease by operation of law, and the learned Judge did not think that there was any irreconcilability between Section 14 and Section 111(e) of the Transfer of Property Act. Now, it is unnecessary for us to express an opinion whether Section 14 is or is not inconsistent with Section 111(c). Mr. Vaidya has forcibly pointed out that the Legislature wanted to restrict the right of the landlord to terminate the lease only to the cases mentioned in Section 14 and it was not open to the landlord to rely on any other cases mentioned in Section 11(c) of the Transfer of Property Act. That appears to us to be a very possible view, but without expressing any opinion it is clear that at least there are two sections in the Act to which we have already drawn attention which are inconsistent with the provisions of Section 111(c) of the Transfer of Property Act and those are Ss. 4 and 5. If a sub-tenancy automatically comes to an end by reasons of Section 111(c), then effect cannot be given to Section 4 which creates a statutory tenancy, nor can effect be given to Section 5 which secures to every tenant whether contractual or statutory, the right to be on the land for a certain period of time, and if the statutory sub-tenant by reason of the provisions at the Act becomes a protected tenant, then his rights would be larger than those provided for in Section 5 and those rights would also be defeated if Section 111(c) was to be given effect. What seemed to have weighed with the learned Judge was the fact that he was dealing with a case of the tenant of a mortgagee in possession and naturally the learned Judge was oppressed by the consideration that under ordinary law on the redemption of a mortgage the tenancies created by the mortgagee in' possession would come to an end, and therefore to give effect to Section 4 would mean that not only the tenants would be protected but also the tenants of the mortgagee in possession. It may be pointed out that the Legislature in the Act of 1948 in Clause (c) of. Section 4 has taken mortgagees in possession out of the category of statutory tenants. Therefore, whatever lacuna there was in the old Act has now been made good. The learned Judge relies on this fact for strengthening his view that mortgagees in possession were never intended to be treated as statutory tenants, and if the tenants of mortgagees in possession were not intended to be treated as statutory tenants, then on a parity of leason sub-tenants could not also be considered as statutory tenants. In our opinion, the amendment efiected by Section 4(c) of the Tenancy Act strongly supports the view which we are inclined to take that under the old Act all persons lawfully on the land were intended to be protected, but the Legislature realising the difficult position in which the mortgagor would find himself if the tenancy created by the mortgagee in possession were to be protected and on redemption the mortgagor was prevented from getting possession of the land, made the necessary amendment by enacting Section 4 (c). 16 is true that the learned Judge in his judgment expressly states that although he had considered -the question of sub-tenancies and has examined the various provisions of the Act in order to decide the question that arose before him, viz., the position of the tenants of the mortgagees in possession, he did not expressly wish to decide that sub-tenancies did not come within the purview of Section 4. But if the learned Judge is right in the view that he has' taken with regard to the tenants of the mortgagees in possession, it must logically follow that the position of the sub-tenants would be the same, and if the reasoning of the learned Judge is right with regard to the question that he was considering, that reasoning would be equally applicable to the question that arises before us. Therefore, with very great respect, we must hold that the view taken by the learned Judge with regard to the position of the tenants of the mortgagees in possession under the old Act of 1939 is not the correct position, and that as far as the old Act is concerned the position of the tenants of the mortgagees in possession and the position of sub-tenants was identical; they both become statutory tenants, one on the redemption of the mortgage and the other on the termination of the contractual tenancy.

10. We will therefore send this matter back to the Division Bench to decide the matter on merits in the light of the judgment delivered by us.

11. C. R. As. Nos. 84 and 85 of 1954 ill goback before a single Judge to be decided on merits.